Walsh v. Truesdell
| Decision Date | 30 April 1878 |
| Citation | 1 Ill.App. 126,1 Bradw. 126 |
| Parties | ELLEN WALSH ET AL.v.ANSON M. TRUESDELL. |
| Court | United States Appellate Court of Illinois |
Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
Mr. Charles J. Beattie, for plaintiff in error; that the allegations and proofs of complainant should agree, cited Kimball v. Took, 64 Ill, 380; Venum v. Venum, 61 Ill. 331; Heath v. Hall, 60 Ill 344; House v. Davis, 60 Ill. 367; Tracy v. Rogers, 69 Ill. 662.
That the trustee should have been made a party: Gardner v. Brown, 21 Wall. 36; Moor v. Munn, 69 Ill. 591; Supervisors Douglass Co. v. Wallbridge, 38 Wis. 179; Russell v. Clarke, 7 Cranch. 69; McRea v. Branch Bank of Alabama, 19 How. 376; Sickmon v. Wood, 69 Ill. 329; Jeneson v. Jeneson, 66 Ill. 259; Atkins v. Billings, 72 Ill. 597; Trustees v. Braner, 71 Ill. 546; Alexander v. Hoffman, 70 Ill. 114.
Mr. D. H. Hammer, for defendant in error; as to allegations and proofs, cited Hahn v. Huber, 83 Ill. 243.
As to parties defendant: Kerr v. Watts, 6 Wheat. 550; Bank of Alexandria v. Seton, 1 Pet. 299; Elmendorf v. Taylor, 10 Wheat. 152.
The bill of complaint set out in this record was exhibited on the chancery side of the Circuit Court of Cook county, at the July term, 1875, by Anson M. Truesdell against Ellen Walsh, widow of John Walsh, late of said county, deceased, John Walsh, Michael Walsh, Mary Walsh, Margaret Walsh and William Walsh, his heirs at law, defendants. By the bill it appears that on the sixth day of June, 1871, the said John Walsh, then in his life time, and Ellen Walsh, became and were indebted to one Thomas I. Noble upon a certain promissory note of that date in the sum of $1400.00, to become due and payable by its terms on the first day of March, 1872, with interest at the rate of ten per cent. per annum. And that for the purpose of securing the payment of said promissory note, according to its tenor and effect, on that day executed and delivered under their hands and seals their certain indenture of trust deed, by which they granted and conveyed to one Joseph N. Barker, of said county, the fee simple title to the following described real estate, to wit: “Lot No. 7, (seven) in Barron's subdivision of lots No. 7 and 8, (seven and eight) of the assessor's division of block number three (3), in Brand's addition to Chicago,” which said conveyance was in trust for the purposes in said indenture of trust deed specified; that is to say to secure the payment of said promissory note above mentioned, according to its tenor and effect. It also appears from the record that on or about the 8th day of October, 1873, said John Walsh departed this life, leaving him surviving the defendants to said bill, as his widow and heirs at law.
The bill prays the aid of the Court in foreclosing said indenture of trust deed as a mortgage, he, said complainant, claiming to be the owner of said promissory note, to secure which the same was given; and that by the decree of the Court, said premises be subjected to sale under the direction of the Court; and that out of the proceeds of such sale said promissory note be paid, etc. It appears that on the 9th day of December, 1876, the Court decreed for the complainant the foreclosure of said trust deed, as prayed, finding due to the complainant from the defendants the sum of $1,878.20, and for the purpose of paying the same, ordered a sale of said premises by the Master in Chancery, according to the rules and practices of that Court.
From this decree the defendants below prosecute this writ of error, and ask the reversal thereof, and assign several errors, only one of which will it be necessary for us to consider. The 4th assignment is that the Court erred in rendering said decree in the absence of the trustee named in the bill, without his consent, he not being a party.
It is insisted by the plaintiffs in error that the trustee, J. N. Barker, is a necessary party to this proceeding, being, as he is, the grantee named in the trust deed, it is apparent that by such instrument, the title in fee simple of said premises was conveyed to said Barker in trust, to be by him used for the purpose of paying said promissory note, as therein declared, and that said title has ever since and still resides in him. It has long been the settled doctrine of Courts of Chancery...
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Maher v. Tower Hotel Co.
...incumbrancers or lienors. Hax v. Caspar, 31 F. 499. A trustee in a trust deed is a necessary party to a suit to foreclose. Walsh v. Truesdell, 1 Ill.App. 126; Lambert Hyers, 22 Ill.App. 616. Time within which to file a demurrer is within the terms of the statute with reference to the time w......